2015 (8) TMI 444 - AT - Central Excise

Illicit clearance of goods - Penalty u/s 11AC - Confessional statement given by partner - Held that - Ramkishor M. Bindal, Partner of Assessee admitted the processing of grey fabrics and clandestine removal of the finished goods without payment of duty. They have paid the duty at the very next date of the visit of the officers. After about more than four years he had retracted the statement only in reply to the show cause notice, which can not be accepted as retraction of statements - appellants (i.e. merchant manufacturers) also supplied the grey fabrics and received the processed grey fabrics with full knowledge that the goods are not duty paid and therefore, imposition of penalties on the other appellants are warranted. It is also noted that the Assessee had not disputed the payment of duty. On a query from the Bench, learned Consultant for the Assessee submits that the Appellant Assessee had not availed the option of payment of 25% of duty as penalty under Section 11AC of the Central Excise Act, 1944, as per the order of the Commissioner (Appeals). - Decided against Assessee.

Summary

Issues:
- Duty evasion and penalty imposition
- Retraction of statement by partner of the Assessee
- Imposition of penalties on merchant manufacturers
- Validity of option to pay 25% of duty as penalty

Analysis:
1. Duty evasion and penalty imposition: The case involved M/s. Ashoka Dyg. & Ptg. Mills, engaged in manufacturing MMF (P) Dyed and Printed fabrics. Officers found illicit clearance of finished printed fabrics without duty payment. The duty amount was debited, and a show cause notice was issued proposing duty demand, interest, and penalties. Adjudicating authority confirmed duty demand, appropriated deposited amount, and imposed penalties on the Assessee and other appellants.

2. Retraction of statement by partner of the Assessee: The partner initially admitted to the clandestine removal but retracted the statement later. The consultant for the appellants argued that the case lacked proper investigation and evidence. However, the Adjudicating authority found the partner's admission credible, as detailed in the statement recorded under Section 14 of the Central Excise Act, 1944.

3. Imposition of penalties on merchant manufacturers: The merchant manufacturers admitted sending and receiving goods without duty payment. The tribunal upheld penalties on them, considering their involvement in the illicit activities. The Assessee did not dispute the duty payment, and the penalties on the other appellants were deemed justified.

4. Validity of option to pay 25% of duty as penalty: The Commissioner (Appeals) allowed the Assessee to pay 25% of the duty confirmed as penalty, subject to timely payment with interest. The Revenue appealed against this option. The tribunal noted that the Assessee did not exercise this option, leading to the rejection of appeals by the Assessee and other appellants. The Revenue's appeal was dismissed due to the Assessee not availing the penalty payment option.

In conclusion, the tribunal upheld the duty evasion findings, penalties on the Assessee and merchant manufacturers, and the validity of the penalty payment option. The retraction of the partner's statement was not accepted, emphasizing the initial admission of wrongdoing. The judgment highlighted the importance of proper investigation and evidence in cases of duty evasion and penalty imposition.